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The Moral Responsibility of the Corporate Lawyer Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 2010 The orM al Responsibility of the Corporate Lawyer Judith A. McMorrow Boston College Law School, [email protected] Luke M. Scheuer Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/lsfp Part of the Corporation and Enterprise Law Commons, and the Ethics and Professional Responsibility Commons Recommended Citation Judith A. McMorrow and Luke M. Scheuer. "The orM al Responsibility of the Corporate Lawyer." Catholic University Law Review 60, (2010): 275-310. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE MORAL RESPONSIBILITY OF THE CORPORATE LAWYER Judith A. McMorrow+ & Luke M Scheuer* I. WHY THE THEORIES THAT SUPPORT NONACCOUNTABILITY ARE PARTICULARLY WEAK FOR TRANSACTIONAL LAWYERS .....................280 A. Zealous Representation and Nonaccountability................................. 280 B. The AdversarialJustification and Rule of Law ..................................283 C. The Autonomy and CitizenshipJustifications .................................... 286 D. Law as a MediatingInstitution for Moral Conflict ............................291 II. WHY LAWYERS' CONDUCT Is NOT CONSISTENT WITH N ONACCOUNTABILITY ..........................................................................294 A. Lawyers Have the Freedom to Choose Clients ..................................294 B. Choosing Clients and Cause Lawyering ............................................298 C. The Process of Lawyering: Intruding on Lawyer Autonomy .............302 D. The Process of Lawyering: Transforming the Lawyer and Inform ation Processing..................................................................... 304 III. THE PUBLIC DOES NOT EMBRACE A BROAD CLAIM OF NONACCOUNTABILITY ..........................................................................306 IV . CON CLU SION ............................................................................................308 On January 11, 2007, Charles "Cully" Stimson, then the deputy assistant secretary of defense for detainee affairs, gave a radio interview to Federal News Radio in which he stated he found it "shocking" that many of the nation's top law firms represent detainees at Guant~namo Bay.' Stimson was + Professor of Law, Boston College Law School. Our thanks to Michael Cassidy, Daniel Coquillette, John Gordon, Gail Hupper, Ray Madoff, Diane Ring, Mark Spiegel, and Paul Tremblay for their comments on earlier drafts. We were also aided significantly by insights from presentations at the 2007 American Bar Association Professional Responsibility Roundtable, Boston College Law School Summer Workshop, the Boston Bar Association, and the 2008 BC Law School Semester-in-Practice seminar. Finally, we are extremely grateful to William Keefe, Boston College Law School, 2009, for his terrific research assistance. This work was made possible by the generous financial support provided by the Boston College Law School Fund. Adjunct Professor, Boston College Law School, Boston University School of Law. In the fall of 2011, Luke Scheuer will be an Assistant Professor at Widener University School of Law. 1. Audio Recording: Charles "Cully" Stimson, Interview with Federal News Radio (Jan. 11, 2007), http://www.federalnewsradio.com/emedia/59677.wma [hereinafter Charles "Cully" Stimson (audio recording)]; see also Editorial, Unveiled Threats: A Bush Appointee's Crude Gambit on Detainees' Legal Rights, WASH. POST, Jan. 12, 2007, at A18 (reporting on and discussing Stimson's interview). Catholic University Law Review [Vol. 60:275 implicitly equating the morality of those attorneys with the morality of their "terrorist" clients. Stimson was blunt in his critique: "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms," 3 The legal profession's response was swift. Many bar associations, law firms involved in Guantfnamo representations, and individual attorneys distributed statements and wrote letters to the editors of newspapers, while many more lawyers talked in the hallways.4 The legal profession came down firmly on the side of nonaccountability: the lawyers who were defending the Guantdnamo "terrorists" were not to be morally equated with their clients. Nonaccountability is a fundamental and controversial tenant of the American legal system that holds that attorneys are not morally accountable for who their clients are, what their clients have done, or what attorneys will do for their clients as long as it is within the bounds of the law. 6 In the legal-representation 2. Charles "Cully" Stimson (audio recording), supra note 1, at 3:48; see also Editorial, supra note 1,at A18. 3. Charles "Cully" Stimson (audio recording), supra note 1, at 3:39; see also Editorial, supra note 1, at A18. 4. See, e.g., Theodore B. Olson & Neal Katyal, We Want Tough Arguments, LEGAL TIMES, Jan. 22, 2007, available at http://www.law.georgetown.edu/faculty/nkk/documents/Olson- Katyall-22-07.pdf (calling Stimson's remarks "unfortunate" and chiding him for attacking lawyers representing detainees and "the legal profession as a whole"); Thomas P. Sullivan, Letter to the Editor, Right to a Lawyer Applies to Everyone, N.Y. TIMES, Jan. 17, 2007, at A18 (defending the law firm Jenner & Block for its representation of GuanatAnamo Bay prisoners); Press Release, ABA, Statement by ABA President Karen J. Mathis on Remarks of Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs, in January 11, 2007 Federal News Radio Interview (Jan. 12, 2007), available at http://www.abanet.org/abanet/media/ statement/statement.cfm?releaseid=65 (identifying Stimson's remarks as "deeply offensive to members of the legal profession, and ...to all Americans"); Press Release, Law School Deans, Statement of Law Deans (Jan. 15, 2007), available at http://www.law.yale.edu/ documents/pdf/News & Events/LawDeansStatement9.pdf (expressing the view of over 150 law-school deans condemning Stimson's comments: "Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals."); Nina Totenberg, Pentagon Remark on Detainees Stuns Legal Experts, NAT'L PUB. RADIO (Jan. 13, 2007), http://npr.org/ templates/story/story.php?storyld=6849592 (reporting New York University School of Law Professor Stephen Gillers's comment that "[Stimson] should be sent back to basic civics classes on the American adversary system and forced to take a quiz before he's allowed to resume his duties"). 5. See, e.g., Olson & Katyal, supra note 4; Press Release, Law School Deans, supra note 4. 6. See Murray L. Schwartz, The Professionalismand Accountability of Lawyers, 66 CALIF. L. REV. 669, 671 (1978) ("Lawyers have claimed, since at least the days of John Adams, that they are 'independent' from their clients in that they are not morally responsible for their clients' actions.") (internal citation omitted); see also Richard W. Painter, The Moral Interdependence of Corporate Lawyers and Their Clients, 67 S. CAL. L. REV. 507, 507-08 (1994) (describing the principle of nonaccountability and calling it "necessary to the effective working of the adversary 2011] The Moral Responsibility of the CorporateLawyer context, the client sets the objectives of the representation and participates in decisions regarding how to achieve those objectives; the attorney acts as a facilitator and an advisor. Under the nonaccountability theory, the attorney is not morally accountable for the objectives of the client or the consequences of achieving those objectives. Attorneys are, therefore, disincentivized to exercise their own moral judgments when choosing whom to represent. Over the last sixty years, this concept has been both criticized and supported by academics.7 Despite academic criticism of nonaccountability, the debate appears to generate little discussion among8 legal practitioners, the majority of whom still widely approve of the concept. This Article explores nonaccountability, why it holds such sway over the legal community, and, in particular, why corporate-transactional practitioners, whose roles as attorneys are least supported by the traditional arguments in favor of nonaccountability, are given this "benefit." 9 This Article argues that corporate lawyers cannot accurately claim that they are not morally responsible for their work on behalf of corporate clients-clients who have a legally impaired ability to engage in independent moral reasoning, and who function in a world of relatively minimal legal oversight. In abandoning the notion of nonaccountability, this Article encourages corporate-transactional attorneys to not only think more deeply about the value of their work to society, but also to better communicate that value. The first
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